California Safer Consumer Products Regulation – Chemicals of Concern

The California Department of Toxic Substances Control (DTSC) has now released the formal draft of the new Safer Consumer Products regulation. The release initiates a 45-day public comment period. DTSC must receive written comments by COB September 11, 2012. Oral arguments may be presented at a DTSC public hearing scheduled for September 10 in Sacramento, CA. The text of the proposed regulation and all of the supporting information are available on the Green Chemistry page of the DTSC website.

Importantly, the regulation will establish a list of approximately 1200 Chemicals of Concern (COC). The list is not currently available but will be published within 30 days of enactment of the regulation. One of the handouts published on the DTSC website is a summary table showing â€śCOC Lists Around the globe.â€ť The number of chemicals on the CA list is generally consistent with the number of chemicals on lists from other states and other countries or regions. As stated in the regulation, the CA COC list was developed using 22 existing lists from authoritative bodies that are based on at least one of seven hazard traits:

Carinogenicity;

Reproductive toxicity;

Mutagenicity;

Developmental toxicity;

Endocrine disruption;

Neurotoxicity;

Persistent bioaccumlative toxicity;

or are on exposure indicator lists for water quality, air quality, and biomonitoring. The approach of referencing lists from authoritative bodies should push the COC list towards consistency with other declarable substance or restricted chemical lists such as those shown in the DTSC summary table. Chemicals that are currently only used in pesticides or drugs will not included in the initial list but may be added later if they are not otherwise regulated. Subsequent to the original publication, DTSC may add chemicals to the list based on considerations of adverse public health and environmental impacts, special situations (e.g., sensitive subpopulations, environmentally sensitive habitats, etc.), exposure information, and the availability of safer chemical alternatives. Proposed additions will be available for public comment for a 45-day period. Any person, organization, or agency may petition DSTC to add or remove a chemical from the COC list or to add the entirety of an existing chemical list to the COC list. However, no one may petition DSTC to delist any chemical on the original list of ~1200 COCs.

The regulation does not create an outright ban or restriction on the use of chemicals of concern in consumer products. Rather, the regulation requires a manufacturer of an identified priority product â€“ COC combination to conduct an Alternative Analysis (AA). The purpose of the AA is to force the manufacturer to implement actions to best limit exposures or adverse public health and environmental impacts associated with the COC in the product. Much of the text of the regulation addresses the AA process.

The stated goals of the regulation are quite modest in early years. The initial proposed list of Priority Products will include no more than five products and will be made available for comment within 180 days after the effective date of the regulation. This small beginning may be dictated in part by the current lack of state funding for the regulation. But, the publication of the COC list can be expected to have much broader impacts. Manufacturers of all types of products, not just consumer products, soon will be put on notice regarding chemicals of concern in California and can reasonably expect that customers and consumer organizations will ask about the presence of these chemicals in their products. In this respect, the Safer Consumer Products Regulation may encourage self-governance on the part of manufacturers. At a minimum, manufacturers will need to add the California chemicals of concern to an already proliferating body of global declarable substances and likely will transmit this information through their supply chain. Additionally, some manufacturers may quickly make adjustments to formulations in an attempt to take advantage of the regulation and gain competitive advantage.